Supreme Court Grants Certiorari To Better Define The First Sale Doctrine

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On April 19th, 2010, the United States Supreme Court granted certiorari to consider whether, in the context of a copyright infringement claim, the first sale doctrine applies to imported goods manufactured abroad. The first sale doctrine, codifed at 17 U.S.C. § 109(a), works as a defense to a copyright infringement claim where the copyright owner consents to the first sale of its copyrighted work.

In Omega v. Costco Wholesale Corp., 541 F.3d 982 (9th Cir. 2008), the Ninth Circuit grappled with the extent to which the first sale doctrine may be used as a defense when the copyrighted work is manufactured and first sold abroad (as opposed to domestically). In this case, Omega's copyrighted work - a globe design - was affixed to watches manufactured in Switzerland and first sold to authorized distributors abroad. The watches were then purchased by third parties, and ultimately sold to Costco. Thereafter, Costco then offered for sale and sold the "gray market" watches to consumers in California. Omega sued Costco for copyright infringement, alleging that Costco's acquisition and sale of the watches bearing the copyrighted work constituted copyright infringement, under 17 U.S.C. §§ 106(3) and 602(a), because Omega had not authorized the sale of the watches in the United States.

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